To Cope With Sequester, The Justice Department Staffs Unpaid Attorneys

The Department of Justice has an opening for what could be a dream job for many newly minted lawyers: serving as a special attorney in the Office of Enforcement Operations. Among other responsibilities, the new hire could be helping the Electronic Surveillance Unit review applications for wiretaps in major federal criminal investigations.

But they’ll have to forego a salary for experience: the one-year position is completely unpaid.

ProPublica has reported on the mounting trend of unpaid internships among college students and recent graduates. But an increasing number of trained attorneys in the Department of Justice are also working for free, with 13 uncompensated positions for “experienced attorneys” (many of them full-time) currently listed on the agency’s web site.

The program “provides a valuable support to the Justice Department as we continue to address the staffing challenges imposed by sequestration and still fulfill our commitment to protect the American people,” said a Justice Department spokesperson, in an emailed statement. The Department of Justice began posting uncompensated special assistant U.S. attorney positions in January 2011, after Attorney General Eric Holder announced a department-wide hiring freeze (individual U.S. attorney offices had hired unpaid lawyers before then, the spokesperson said).

There are currently 96 unpaid special assistant U.S. attorneys working for the department, according to a spokesperson, who said paid assistant U.S attorneys have starting salaries ranging from $44,581 to $117,994.

Many of the special assistant U.S. attorneys are doing much of the same work as their paid counterparts. According to one job posting from the U.S. attorney’s office in Puerto Rico, they “have the opportunity to represent the interests of the United States of America…and to exercise responsibility that is unparalleled in any other job that a litigator might undertake. [They] immediately undertake numerous cases, many high profile, in any of several units within each division.” The position requires three years of legal experience.

One former special assistant U.S. attorney, who asked not to be named, said she was given her own caseload, the way other paid assistant attorneys were. She said the program gave her hands-on trial experience she wouldn’t have had otherwise.

Some say the program is a practical solution to growing budget pressures. “I see [it] as a stopgap measure,” said lawyer David Lat, managing editor of the legal news site Above the Law and a former assistant U.S. attorney.“This is an attempt to manage their caseloads and their budgets.”

The sequester slashed $1.6 billion from the Justice Department’s budget. A November report from the Inspector General’s Office said the department should “redouble its efforts” to cut costs.

But critics say the department can’t “volunteer” its way out of a budget crisis. “The government can’t run itself that way,” said Carrie Cordero, director of national security studies at Georgetown University Law Center and a former special assistant U.S. attorney. “The entire government is under a budget strain. Every department can’t just start hiring free labor.”

Some assistant U.S. attorneys claim the positions violate a federal law, known as the Antideficiency Act, which says the government can’t be staffed with unpaid volunteers.

“The Department of Justice’s continued actions to secure the unpaid services of individuals performing the same work that paid Assistant U.S. Attorneys perform is inconsistent with the Antideficiency Act,” said Bruce Moyer, counsel to the National Association of Assistant U.S. Attorneys.

“We continue to believe the department’s long-standing use of uncompensated [special assistant U.S. attorneys] is legally permissible,” wrote H. Marshall Jarrett, director of the Executive Office for U.S. Attorneys. While special assistant U.S. attorneys have a legal maximum salary, he said, there’s no minimum. Which means the Justice Department considers itself free to set their salary “at a gratuitous rate of pay (i.e. $0).”

The law on government volunteers is far from cut and dry. The Antideficiency Act’s original intent, according to the Government Accountability Office, was to keep agencies within budget by preventing them from using “volunteer” workers who would later expect to be compensated. The GAO and the Attorney General’s office have since said some unpaid government gigs are allowed, as long as it’s clear from the outset that they’re not (and never will be) paid positions. Agencies still can’t waive wages for employees whose salaries are fixed by statute.

The association sent a follow-up letter to Holder on June 4, calling the Executive Office for U.S. Attorneys interpretation “overbroad and inconsistent” with the law. Holder has not yet replied.

Their complaint also raised concerns about what it means to have unpaid, short-term lawyers representing the U.S. in federal court.

Cordero penned an op-ed in the National Law Journal after a number of law students she advises inquired about the unpaid positions. Many lawyers were surprised, she said, to learn the Justice Department was hiring uncompensated attorneys. “These are positions of public trust,” she said. “If you want top talent you pay them competitive salaries.”

Though “uncompensated” is listed on the postings in big capital letters, U.S. attorney offices say they haven’t had a shortage of qualified applicants. Lawyer Steven J. Harper, author of “The Lawyer Bubble: A Profession in Crisis,” said that’s likely due to the grim job market facing lawyers today.

“Last year we graduated a record number of new lawyers, [and] next year we’ll graduate even more,” he said. Of law school students that graduated in 2012, only 56 percent were able to get a full-time job requiring a law degree.

Meanwhile, “law school tuition has grown at a rate that is far greater than medical school or anything else,” Harper said. Law school grads now face over $100,000 of debt on average. “Who can afford to do something unpaid after you’re out of law school [with] this overhang of student loan debt?”

Unpaid lawyers in U.S. attorney offices could qualify for student loan deferment. But as a former unpaid assistant U.S. attorney pointed out, they aren’t eligible for the Attorney Student Loan Repayment Program, which helps pay off student loans in return for a three-year position with the Department of Justice. Most unpaid positions are capped at a year.

Many hope the use of unpaid attorneys is just a temporary fix. But as Cordero sees it, the practice “devalues a law degree.”

“I see them do so many externships,” Cordero said of her students. “If that’s extending to post graduation, when does it end? At what point can they start getting paid?”